Blasphemy law needs to be repealed

In practice it may be unusable but it remains on the statute book, anomalous and out of step with most democratic states

 

The abolition of Ireland’s antiquated, unworkable and unused blasphemy law has rightly been put firmly back on the agenda by the attack on Charlie Hebdo. But although the Constitutional Convention in 2013 recommended, and the Government endorsed, the repeal of the constitutional prohibition (Article 40.6.1.i.), and its replacement with a prohibition on incitement to hatred, the Taoiseach has regrettably made clear that it is some way down the priority list of issues to be put to citizens and will not be addressed in a referendum during the term of this Government.

Admittedly the case for urgent repeal is mainly symbolic and political, a means of expressing a commitment to ending the privileging of religion in a State that has in recent years embraced secular values. In practice the prohibition over the years has largely been largely exhortative although perhaps it could be said to have reinforced a culture of censorship – the only attempted, and failed, prosecution since 1855 was in 1999, a private case against the Irish Independent over a cartoon during the 1995 divorce referendum depicting government leaders snubbing a Catholic priest who was holding out a Communion wafer.

Legislation in 2009 gave long overdue legal effect to the constitutional provision, a lacuna that contributed in no small measure to the failure of the 1999 case. But lawyers argue it is drafted – deliberately perhaps – so that the prosecution bar is set so high it is in practice unusable. The law, however, remains on the statute book, anomalous and out of step with most democratic states.

The international context is important. A 12-year campaign within the United Nations by the Organisation of the Islamic Conference, representing 56 Islamic states, won majority approval in the Human Rights Council and the General Assembly for a series of resolutions on “combating defamation of religion”. Opposing the motion in the 2009 debate, Sweden, for the EU and us, argued that international human rights law protects individuals – notably from incitement to hatred – not institutions or religions. France insisted that the UN must not afford legal protection to systems of belief.

Embarrassingly, however, during the debate Ireland’s prohibition on blasphemy, along with that in EU countries such as Denmark, Greece and Germany, albeit rarely if ever enforced, was cited in defence of the OIC proposal.

In 2011 the OIC backed off its campaign, agreeing to a new approach that won a broad UN consensus, switching the focus from protecting beliefs to protecting believers. Diplomats from Islamic countries warn, however, that they could return to campaigning for an international law against religious defamation if Western countries are not seen as acting to protect believers. They should not find succour in Ireland’s reactionary law.